PANHANDLE CELLULAR PARTNERSHIP AGREEMENT
For Panama City, Florida
MSA 283
This Agreement is by and among the Parties who have timely executed and
delivered a Counterpart Signature Page for this Agreement ("Parties") subject,
however, to the right of ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ to accept this Agreement depending
upon the number of signatories hereto. The Counterpart Signature Pages, together
with this Agreement, constitutes the entire agreement of the Parties
("Agreement").
WHEREAS, each Party hereto is a beneficiary of the Joint Agreement, dated
November 21, 1986 by and among: ▇▇▇▇▇▇ Resources, Inc. (14 parties); Mobile
Telephone Corporation (13 parties plus ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇); Western Cellular
Engineering, Inc. (1 party); and
WHEREAS, One Party, ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ is the permittee (referred to herein
as the "Permittee" or "Winning Partner") designated by the Federal
Communications Commission ("FCC") for authorization ("Authorization") to build
and operate the non-wireline cellular system ("System") for Panama City, FL MSA
283 ("Market"); and
WHEREAS, in order to clarify each Party's rights and obligations with
respect to the Authorization for the Market, the Parties desire to form this
Panhandle Cellular Partnership ("Partnership") to supersede and replace the
Joint Agreement and all other agreements under which persons may claim an
interest in the System under the terms and conditions set forth herein; and
WHEREAS, the formation of two business entities appears to be a condition
to obtaining acceptable equipment and working capital financing for the System.
The two entities would be arranged in a two tier structure such that all
interest holders would join together in a partnership which would constitute a
holding entity. This holding entity would act as the limited partner in an
operating entity which would operate the System. Through an Executive Committee
the holding entity would pledge its ownership interest in the operating entity
to secure System financing.
NOW, THEREFORE, in consideration of the mutual obligations herein
contained, the receipt and sufficiency of which consideration the Parties hereby
acknowledge, the Parties agree as follows:
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I. Organization
1.1 Governing Agreement. The Partnership shall be governed by the terms
and conditions set forth herein. The Parties hereby intend to form a general
partnership on the terms herein stated.
1.2 Name and Place of Business. The name of the Partnership shall be the
Panhandle Cellular Partnership. The Partnership may also do business under such
other names as are authorized by the Executive Committee from time to time. The
name may be changed from time to time by the Executive Committee of the
Partnership ("Executive Committee"). The principal place of business of the
Partnership shall be Panama City, Florida or any other place authorized by the
Executive Committee. The Partnership shall be a Florida Partnership.
1.3 Purpose. The purpose of this Partnership is to own and manage the
limited partnership or other interest in the entity which will operate the
System for the Market ("Partnership Business"). This Partnership may take any
and all action necessary, incidental or convenient to carry out the Partnership
Business.
1.4 Term. The term of the Partnership shall commence on April 29, 1988
("Effective Date"). The term shall continue until the ninety-ninth anniversary
of the Effective Date, or until earlier terminated as provided herein. This term
may be extended at its expiration date for a similar term only upon approval of
those holding a majority interest in the Partnership.
1.5 Formation. The Partnership shall include each Party who has returned
an executed Counterpart Signature Page on or by the date specified in the letter
circulating this Partnership document and paid the initial $200.00 Capital Call
for each .99% interest. Beneficiaries of the Joint Agreement dated November 21,
1986 who fail to become signatories to this Agreement as a result of not signing
and returning to Winning Party the Counterpart signature page and Qualifications
Questionnaire before April 29, 1988 shall thereby forfeit all rights in this
Partnership, and shall forfeit all contract and all other rights associated with
cellular telephone business in the Market, subject to prior FCC consent, if any
is necessary. All such forfeited interests shall automatically be added to each
Partner's Ownership Interest as specified in Section 2.3 below. Winning Partner
shall have the right to allow additional Parties to join this Partnership at any
time. Such additional Parties may include those who are claiming an interest in
the System in the lawsuit captioned ▇▇▇▇▇▇▇▇, et ▇▇ ▇. ▇'▇▇▇▇▇, et al, Bay
County, Florida Cause No. 87-3325. Any person added as an additional party
shall be required to contribute capital in
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such amount as to put such person on a par with other Parties holding like
interests and sign this Agreement. All parties hereto recognize and agree that
the addition of additional Parties to this Partnership will have the effect of
reducing the Partnership Interest of Parties hereto.
1.6 Assignment. Parties hereto shall be permitted to assign all or part of
their interest(s) to another entity or other entities and any such entity or
entities shall succeed to all rights and obligations of the transferor(s).
1.7 Two Tier Structure. This Partnership may become the limited partner in
a limited partnership which may operate the System in the Market. It is
anticipated that this partnership will own 99.01% of such limited partnership. A
.99% interest in a limited partnership operating entity may be granted to the
general partner of the limited partnership which acts as an operating entity.
The general partner in the Operating Entity may be an entity in which Winning
Partner has an interest.
II. Capital Contributions
2.1 Initial Partnership Share. Winning Partner has at least a 50.01%
Ownership Interest in this Partnership. The other Parties to this Agreement
("Minority Parties") have each acquired the right to obtain up to a 0.9900%
interest in this Partnership. All computations under this Agreement shall be to
the nearest ten thousandth of a percent. Any amounts left over shall be added to
increase the interest of the Winning Partner.
2.2 Capital Contributions. Notwithstanding anything to the contrary, each
Party hereto ("Partner") shall contribute to the Partnership in cash its
pro-rata share of the capital of the Partnership in the amounts requested in
writing ("Capital Calls") from time to time by the Executive Committee of the
Partnership. Each Partner's capital contribution shall be made within thirty
(30) days following the date that the Capital Call for the contribution is
delivered to the Partner pursuant to Section 10.10 below. For purposes of this
Agreement, each Partner's pro-rata share shall equal the percentage of its
Ownership Interest in the Partnership at the time of the Capital Call. Capital
Calls except the initial Capital Call of $200.00 for each .9900% interest upon
each Partner shall include an explanation of the reasonably anticipated uses of
the funds.
2.3 Ownership Percentages. Each Partner shall initially have an Ownership
Interest in the Partnership determined in accordance with Sections 1.5 and 2.1
above. After the contributions
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have been made in response to each Capital Call, the interest in the Partnership
("Ownership Interest") held by each Partner shall equal the percentage derived
by multiplying the Partner's total capita contributions by one hundred and then
dividing by the total capital contributions made by all of the Partners.
2.4 Initial Capital Call. The action of the Winning Partner in soliciting
and receiving the initial Capital Call of $200.00 for each .99% interest to be
applied according to this Agreement is hereby ratified, confirmed and approved
by each signatory to this Agreement.
2.5 Failures to Contribute. If any Partner fails to make all or part of a
Capital Call when due pursuant to Section 2.2 above, then the Partner shall be
considered to be in material default with respect to its Ownership Interest in
the Partnership and such Partner's interest shall be reduced by operation of
Section 2.3 above. If a Partner fails to make its initial Capital Call, its
ownership in the Partnership shall be forfeited to the other partners, subject
to the provisions of Section 1.5 above and prior FCC approval, if any is
necessary. No right to cure under this Agreement shall apply to any failure to
make a Capital Call when due, unless approved by unanimous vote of the Executive
Committee. Each deficiency in meeting a Capital Call may be met by a further
pro-rata Capital Call on Partners other than the Partner(s) responsible for the
deficiency. Such further contributions shall be credited to the Capital Accounts
and the Ownership Interest of the Partners making the further contributions and
shall be determined in accordance with the total contributions made by each
Partner subject to the limitations set forth in this Agreement. Whenever a
Partner's interest falls below .2500% and such Partner is in default with
respect to any obligations under this Agreement the Permittee shall have the
right to tender to such defaulting Partner the book value of such defaulting
Partner's interest and such tender shall result in the automatic transfer of the
interest of the defaulting Partner to the Permittee.
2.6 Partnership Financing. Loan agreements for system financing shall be
without recourse to the Partners or shall expressly limit each Partner's joint
and several liability to that particular Partner's Ownership Interest. The
Partnership may participate in the formation and management of a business entity
which will hold the Authorization and enter into financing agreements using the
interests in such business entity as collateral to secure financing. By majority
vote of the Executive Committee, this Partnership shall have the right to pledge
all of its interest in the operating entity as security for financing. Such
pledge shall indirectly include the 50.01% interest of the Winning Partner as
well as the interest of the minority partners.
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2.7 Application Expenses. Permittee shall be entitled to credit toward his
initial and subsequent Capital Call contribution requirements for the expenses
incurred in connection with his application, the dismissal of any petitions to
deny, or other costs incurred in furtherance of the business of this Partnership
or in furtherance of the business of the entity which is owned by this
Partnership and which operates the System ("Operating Entity"). The costs of
prosecuting the winning application which are incurred after the lottery,
defending the winning application's selection and grant and developing the
Partnership Business shall be borne by the Partnership and not individually by
the Winning Partner. This includes all such costs and expenses including but not
limited to attorney's fees, application fees, transportation costs, office
expenses, start-up costs, salaries and any other expenses associated with the
operation of this Partnership or the Operating Entity.
III. Capital Accounts and Allocations
3.1 Title to Property. This Partnership as an entity shall hold sole and
exclusive title to the assets of this Partnership and to all authorizations,
equipment, records, and other property, whether real, personal or intangible,
acquired by this Partnership. No Partner shall have any right, in law or equity,
to request the partition of any asset or property of this Partnership, or to
demand property other than cash upon any distribution by this Partnership.
3.2 Capital Accounts. A separate Capital Account ("Capital Account") shall
be maintained for each Partner on the books of the Partnership in accordance
with generally accepted accounting principles. The Capital Account of each
Partner shall (i) be credited with the Partner's cash capital contributions to
the Partnership and with the net income and gain, if any, of the Partnership
allocated to such Partner and (ii) be charged with the net losses, if any, of
the Partnership allocated to such Partner and with all distributions made by the
Partnership to such Partner. No Partner shall be entitled to interest on its
Capital Account. For purposes of this Agreement, Partnership net income, loss
and gain shall be determined by the Partnership's accountants in accordance with
generally accepted accounting principles.
3.3 Distributions. Distributions of net income and other Partnership
proceeds to the Partners shall be made quarterly in accordance with their
Ownership Interests at the time of distribution. However, the amount available,
if any, for each such distribution shall be determined by the Executive
Committee.
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Distributions of net income shall not exceed such quarter year's net income,
less the amount determined by the Executive Committee to be reasonably required
for non-expensed items in the Partnership budget, such as payment of debt,
principal due or past due, capital investment needs, and working capital. No
Partner shall be required to make a capital contribution to provide the funds
necessary to make a distribution, nor shall the Partnership be required to
borrow money for such purpose.
3.4 Tax Allocations. Taxable income, gain or loss and items of tax credit
of the Partnership for each taxable year shall be determined by the
Partnership's accountants in accordance with applicable income tax laws, rules
and regulations and shall be allocated to the Partners in proportion to their
respective Ownership Interests.
IV. Management
4.1 Partner Voting. Each Partner's voting percentage shall equal the
percentage of its Ownership Interest in the Partnership. The Executive Committee
shall maintain records indicating the Ownership Interest of each partner in the
Partnership. When a Partnership vote is required a vote reflecting more than
fifty percent (50%) in Ownership Interest ("Majority Vote") shall be required.
4.2 Partners' Meeting. A meeting of the Partners shall be held at least
once each year. The first Partners' Meeting shall take place no later than
ninety (90) days after the Effective Date of the Partnership. Partners holding a
total of at least fifty percent (50%) in Ownership Interests shall constitute a
quorum necessary for a Partners' Meeting. Each Partner may designate a proxy to
represent it at Partners' Meetings, by giving written notice thereof to the
Executive Committee. The person so designated will continue to hold said proxy
until the Executive Committee receives written notice of either the revocation
of said proxy or the designation of a successor proxy holder by the Partner.
4.3 Executive Committee. Complete and exclusive power to conduct the
business affairs of this Partnership is hereby delegated to the Executive
Committee of this Partnership ("Executive Committee"), consisting of three
members; provided, however, that prior to the first annual meeting, the Winning
Partner is hereby granted all powers of the Executive Committee. Each member of
the Executive Committee shall be elected at the annual Partners' Meeting;
provided, however, that those persons holding 49.99% of the voting power of this
Partnership (which group may include
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[Illegible] Partner) shall be entitled to elect one of the three members of the
Executive Committee at each annual meeting. Members of the Executive Committee
may be removed at any time by Majority Vote of the Partners. However, the
Executive Committee may fill by appointment any vacancy in its membership which
occurs between annual Partners' Meetings or if the annual Partners' Meeting
fails to elect all required members of the Executive Committee. Meetings of the
Executive Committee shall be held not less than two times per year and such
meetings may be held by conference telephone call. A majority (more than fifty
percent) of the Executive Committee shall constitute a quorum for the
transaction of its business. Each action of the Executive Committee shall
require a vote of a majority of the Executive Committee members casting a vote.
The Executive Committee shall have the authority to pledge the Ownership
Interest of this Partnership in the operating entity as security for System
financing on a non-recourse basis to the individual Partners of the Partnership.
Each Partner hereby grants to and confirms in the Executive Committee power of
attorney and all authority necessary to pledge as security for any such
financing the interest of this Partnership in the Operating Entity and to take
all action deemed by a majority of the Executive Committee to be in the best
interest of this Partnership. Such power of attorney is hereby agreed to be
coupled with an interest. All powers hereby conferred upon the Executive
Committee are hereby agreed to be irrevocable. The Executive Committee is given
the broadest power allowable restricted only by good faith and fair dealing.
4.4 Chairperson and Employees. The Executive Committee shall elect a
Chairperson from among its members. The Chairperson shall preside at all
Executive Committee meetings and all Partners' Meetings. The Executive Committee
may delegate responsibilities and authority to the Chairperson, the System's
general manager, or other Partnership employees to the extent it considers
reasonable. The System's general manager may be delegated the day to day
responsibility for conducting the Partnership Business.
4.5 Meeting Notices. written notice of each Partners' Meeting and each
Executive Committee meeting shall be given by the Chairperson of the Executive
Committee to each Partner and Executive Committee member, respectively. The
notice shall state the place, date, hour and purpose of the meeting. Notice of
any meeting shall be given not less than ten (10) nor more than thirty (30) days
before the date of the meeting, unless otherwise waived in writing. When a
meeting is adjourned to reconvene at another time or place it shall not be
necessary to give notice of the reconvened meeting if the time and place of the
reconvened meeting are announced at the adjourned meeting.
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4.6 Minutes. Minutes reflecting the actions taken at meetings of the
Partnership and Executive Committee shall be kept. Copies of the minutes shall
be maintained at the office of the Partnership and shall be properly transmitted
to a Partner or its representative upon written request.
4.7 Arrangements with Partners. The Partnership may enter onto reasonable
agreements with a Partner or affiliate of a Partner for the performance of
services or the acquisition of System property. However, each such agreement
shall be on terms no less favorable to the Partnership than could readily be
obtained if it was made with a person or entity who is not a Partner or
affiliate of a Partner.
4.8 Indemnification. The Partnership shall indemnify and hold harmless the
Executive Committee from any loss or damage, including attorneys' fees, incurred
by it by reason of any act Performed by it on behalf of the Partnership or in
furtherance of the Partnership's Business; provided, however, that such
indemnification or agreement to hold harmless shall be recoverable only out of
the assets of the Partnership and not from the Partners; provided, further, that
the foregoing indemnity shall extend only to acts or omissions performed or
omitted by the Executive Committee in good faith and in the belief that its acts
or omissions were in the Partnership's interest, and which are not a result of
gross negligence or misconduct on the part of the Executive Committee (unless a
court having jurisdiction determines that the Executive Committee is fairly and
reasonably entitled to such indemnification). Nothing in this Section 4.8 shall
prohibit the Executive Committee from acquiring and entering into contracts of
insurance at the expense of the Partnership that will provide protection to the
Executive Committee from liability for its negligence. Nothing contained in this
Agreement shall allow or be construed to allow an Executive Committee member to
obtain payment or reimbursement for legal fees or other expenses incurred in
connection with any dispute with the Winning Partner.
4.9 No Partner Authority. No Partner shall take any part in the conduct or
control of the Partnership's business nor have any right or authority to act for
or on behalf of the Partnership, except as (a) a member of the Executive
Committee or (b) an agent or employee of the Partnership.
4.10 Operating Entity. The Operating Entity will operate the System in the
Market. The Executive Committee of this Panhandle Cellular Partnership is
empowered to pledge the entire interest of this Partnership in the Operating
Entity as additional security for the obligations of the Operating Entity. It is
anticipated
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that the Operating Entity will acquire equipment and working capital financing
on a secured basis and pledge all of its own assets as security for such
financing.
V. Books and Accounts
5.1 Fiscal Year. The fiscal year of the Partnership shall and on December
31st of each year, or such other date approved by the Executive Committee.
5.2 Books and Records. The Partnership shall maintain proper books and
accounts in accordance with generally accepted accounting principles and the
provisions of this Agreement. Upon the close of each fiscal year, or as
otherwise approved by the Executive Committee, all such books and accounts shall
be audited by the Partnership accountants.
5.3 Reports and Tax Returns. At least fifteen (15) days prior to the
commencement of each fiscal year, the Executive Committee shall mail to each
Partner the annual budget for the Partnership for the fiscal year, together with
the annual budget for the business entity which operates the cellular system.
Within one-hundred and twenty (120) days after the end of each fiscal year,
except in extraordinary situations, the Executive Committee shall mail to each
Partner (i) financial statements for the Partnership, including its balance
sheet as of the end of the year, its statement of income and earnings for the
year, and a statement of changes in its financial position for the year; (ii)
all necessary financial, tax, and other data required for inclusion in or
preparation of tax returns for the Partners; (iii) financial statements for the
business entity which operates the System in Panama City including its balance
sheet as of the end of the year, its statement of income and earnings for the
preceding year and a statement of changes in its financial position for the
year. The Executive Committee may issue other reports from time to time as it
considers appropriate.
5.4 Right of Inspection. Each Partner shall have the right, at its own
expense, to examine and inspect, at reasonable times during business hours, the
books, records, accounts, properties and operations of the Partnership at the
Partnership place of business. Such examination and inspection may be conducted
by the Partner or its authorized agents. However, such examination or inspection
shall not interfere with the operation of the Partnership.
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VI. Transfers of Interest
6.1 Assignment Permitted. Subject to the grant by final order of any
required FCC or other regulatory consent, and subject to the terms of this
Agreement, each Partner may sell, assign, or exchange (collectively "Assign")
all or part of its Ownership Interest to or with any other person or entity
("Assignee"). However, the assigning Partner shall remain fully liable for any
an all of its obligations as a Partner which are incurred prior to the date upon
which the assignment of its Ownership Interest is effective. The Assignee
thereafter shall be subject to all the terms and conditions of the Partnership
Agreement, including all obligations under this Agreement which are attributable
to the assigned Ownership Interest. Partners shall supply adequate proof
satisfactory to the Executive Committee of each Partner's right to participate
in this Partnership, and each person who claims an interest in the Partnership
hereby warrants his or her rights to so participate.
6.2 Notice of Assignment. A Partner who agrees or is required by operation
of law or order of a court of competent jurisdiction, to sell assign or exchange
all or part of its Ownership Interest shall notify the Executive Committee and
counsel to the Partnership at least thirty (30) days in advance of the
consummation of the sale, assignment, or exchange (collectively "Assignment").
The notice shall set forth the name, address, citizenship, and other information
necessary to establish the legal qualifications of the Assignee to hold the
interest to be assigned. This notice is for information purposes only, and shall
not constitute the offering of any right of first refusal to purchase the
interest.
6.3 Approvals and Documentation. If the prior consent of the FCC, any
state regulatory agency, or other governmental authority is required for the
Assignment, such consent shall be obtained prior to consummation of the
Assignment and admittance of the Assignee as a Partner. The Assignee shall
execute and acknowledge all instruments and applications, in form and substance
satisfactory to counsel for the Partnership, which are necessary or desirable to
obtain such consent, to effectuate the Assignment, to admit the assignee as a
Partner, and to bind the assignee under all of the terms and conditions of the
Partnership Agreement. Prior to admission as a Partner, the Assignee shall
reimburse the Partnership for all reasonable expenses, including attorneys'
fees, incurred by the Partnership in connection with the Assignment.
6.4 Preservation of Authorization. No Partner may assign all or part of
its Ownership Interest to any other person or entity unless the Assignment, in
the opinion of the Partnership's
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counsel, will not disqualify the Partnership from receiving or holding the
Authorization.
6.5 Involuntary Assignment. Upon the death, bankruptcy, insolvency or
incompetency of a Partner, the legal representative, guardian, receiver,
creditor's committee or other successor in interest of the Partner, as the case
may be, shall notify the Executive Committee in writing of such event and,
subject to the restrictions in this Agreement and to Section 6.2 above through
this Section, shall be assigned the Partner's Ownership Interest and admitted as
a Partner.
6.6 Encumbrance of Ownership Interest. No Partner shall pledge,
hypothecate, grant a security interest in or otherwise encumber its Ownership
Interest on the partnership unless: (i) the Partner gives not less than thirty
(30) days prior written notice to the Executive Committee of the creation of the
encumbrance; (ii) the encumbrance attaches solely to the subject Ownership
Interest, and does not attach to any real, personal or intangible property,
equipment, or other asset of the Partnership; (iii) the secured party is
obligated to comply with Sections 6.2, 6.3, 6.4, and 6.5 above in the event it
attempts to enforce the encumbrance; and (iv) any such grant is subject to any
and all prior action with respect thereto by the Executive Committee.
VII. Representation and Warranties
7.1 Representations and Warranties. Each Party or Partner represents and
warrants that: (i) it is duly formed (if not a natural person), validly
existing, and in good standing under the state and local laws to which it is
subject, with full power and authority to enter into and to perform its
obligations under this Agreement; (ii) its execution and performance of this
Agreement will not conflict with, or result in a material breach of or default
under, any agreement, instrument, law, regulation, order, decree or judgment to
which it is subject; (iii) this Agreement is binding and enforceable against it;
(iv) it shall appoint a representative who shall have full power and authority
to vote for it on Partnership matters and such authority shall not be abrogated
until a successor representative is appointed; (v) it has no knowledge of any
fact or circumstance which would disqualify it, the Partnership or the entity
owned by this Partnership from receiving a final grant of the Authorization;
(vi) the statements made or to be made in its application for the Authorization
are true, correct and complete and it has no prohibited cross interest in any
other mutually exclusive application or settlement group; (vii) if the
application is dismissed or returned by the FCC it shall immediately notify the
Executive Committee of such action;
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(viii) it has not engaged in any improper act, practice or omission which, if
not timely corrected, would result in disqualification of the Operating Entity
to obtain or operate under the Authorization.
VIII. Default
8.1 Material Default. If a Party for any reason breaches any covenant,
representation or warranty of this Agreement as contained in Sections 6.1-6.6
inclusive, 7.1, 10.1, 10.2, and 10.5 hereof, and the breach is not cured within
thirty (30) days after written notice of the breach is provided to the
defaulting Party, then the Party shall be considered to be in material default.
Any Party who commits such a material default shall be liable to the Partnership
for, and shall indemnify the Partnership against, all resulting damages, losses,
and/or expenses suffered and/or incurred by the Partnership including reasonable
attorneys' fees and litigation expenses, suffered or incurred by the
Partnership. The exercise of rights provided in Section 8.2 below shall not
relieve the Party of such liability or indemnification and shall not constitute
a waiver, by any Party of the Partnership of any right or remedy against the
defaulting Party under this Agreement, including the right to offset damages,
losses and expenses against any amount owed to the defaulting Party.
8.2 Sale on Material Default. Each Party who commits a material default
may, at the election of a majority of the Executive Committee, be required to
forfeit its interest in this Agreement, and subject to any required FCC consent,
to transfer to the Winning Partner its Ownership Interest, if any, for an
aggregate amount equal to the lesser of (i) the balance of its capital account;
or (ii) the Partnership book value of its Ownership Interest, as determined in
accordance with generally accepted accounting principles. However, if such
material default occurs before the Party's payment of its share of the Initial
Capital Call, the Party's Ownership Interest shall be forfeited for no
compensation whatsoever and the interest, if any, so forfeited shall
automatically become the property of this Partnership. The provision of this
paragraph may be waived on a case by case basis by vote of the Executive
Committee.
IX. Dissolution and Termination
9.1 Dissolution. Subject to prior FCC and regulatory consent, if any is
required, the Partnership shall dissolve upon the occurrence of any of the
following events: (i) Majority Vote of the Partners to dissolve the Partnership;
(ii) the expiration
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of the term of this Partnership in which event the interest of all Minority
Parties and all rights associated with the Partnership Business shall
automatically terminate.
9.2 Right to Continue. If the Partnership is dissolved the Winning Partner
or his designee shall have the right to continue the Partnership Business for
the account of Winning Partner or his designee.
9.3 Winding Up. In the event of the dissolution of the Partnership for any
reason, unless the Partnership is continued pursuant to Section 9.2 above, the
Partnership shall be liquidated and its affairs wound up by the Executive
Committee in an orderly yet proper manner. The Partners shall continue to share
all items of income, gain, loss, deduction or credit for tax purposes, and all
profits and losses for accounting purposes, during the period of liquidation in
the same manner as before the dissolution. In order to obtain full market value
from the sale of Partnership assets, the Executive Committee shall have the full
right and discretion to determine the time, manner and terms of each sale of
Partnership property pursuant to the liquidation.
9.4 Distribution Upon Liquidation. After paying or providing for the
payment of all debts and liabilities of the Partnership and all expenses of
liquidation, and after reserving funds reasonably sufficient to cover contingent
or unforeseen liabilities or obligations of the Partnership, the proceeds of the
liquidation and any other assets of the Partnership shall be distributed to the
Partners in accordance with their Ownership Interests at the time of
distribution.
X. Miscellaneous
10.1 Mutual Cooperation. Each Party shall, in good faith, cooperate with
each other Party, the Partnership, and the Executive Committee in promptly
undertaking all actions, executing all documents, and filing all materials with
the FCC, any other governmental body, lenders, vendors, or financial
institutions as may reasonably be necessary or desireable to fulfill each of the
Party's obligations under this Agreement.
10.2 Other Business. Nothing contained in this Agreement shall restrict
any Partner or affiliate of a Partner from engaging in any business outside of
and independent from the Partnership, except that no Partner or affiliate of a
Partner shall be a sales agent or reseller of the wireline cellular system in
the Market.
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l0.3 Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the Parties, their legal
representatives, heirs, administrators, executors, successors and permitted
assigns.
10.4 No Agency. The Parties understand and agree that neither this
Agreement nor the Partnership itself grants or creates in any Party or the
Partnership any power of agency to bind or obligate the Partners, except as
expressly set forth in this Agreement.
10.5 Confidential Information. Under no circumstances shall any Party
utilize or disclose in any manner which is in any way adverse to the interests
of the Partnership or any Party any confidential information, including but not
limited to engineering, technical, financial, managerial and marketing
information, whether or not patentable or copyrightable, disclosed by a Party to
the Partnership or to the other parties in connection with Partnership matters
or created by the Partnership itself or by the Parties in connection with
Partnership matters.
10.6 Specific Performance. Each Party acknowledges that monetary damages
for breach of any of the provisions of this Agreement could be inadequate. Each
Party therefore acknowledges that specific performance, temporary and permanent
injunctive relief, and other appropriate remedies may be granted to enforce any
such provision without proof of actual damage or the inadequacy of the remedy at
law. Notwithstanding the foregoing, damages may also be awarded in addition to
specific performance for breach of this Agreement.
10.7 Severability. If any provision of this Agreement is determined by any
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement shall continue to be in full force and effect.
10.8 Governing Law. This Agreement and the rights of the Parties hereunder
shall be governed, interpreted, and enforced in accordance with the laws of the
State of Florida.
10.9 Final Order. For purposes of this Agreement, a final order of a
government authority shall mean an order which is effective and is no longer
subject to administrative or court reconsideration, review, appeal or stay.
10.10 Notices. All notices, demands and Capital Calls required or
permitted under this Agreement shall be in writing and shall be conclusively
presumed to have been delivered to the recipient three (3) business days after
posting in the United
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States mail, first class, postage prepaid, to the recipient's address shown at
the time on the records of the Partnership. Any Party may specify a different
address by notifying the Executive Committee on writing of the change in
address.
10.11 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon the same instrument. Each signed counterpart shall be dated.
10.12 Headings. All article, section and paragraph titles or captions
contained in this Agreement are for convenience only and shall not be deemed
part of the text of this Agreement.
10.13 Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural as the context may
require.
10.14 Entire Agreement. This Agreement and the Counterpart Signature Pages
specifying the Partnership constitute the entire agreement between the Parties,
superseding all prior agreements or understandings between the Parties. This
Agreement may be modified or amended only by an instrument in writing adopted in
accordance with the provisions of this Agreement.
10.15 Pending Litigation and Claims. There is pending a lawsuit concerning
conflicting claims to interests in this Partnership. Said proceeding is pending
in the circuit court of the Fourteenth Judicial District in the State of Florida
in and for Bay County under Case Number 87-3325. Nothing contained in this
Agreement shall be deemed to constitute a warranty with respect to the true
right to Ownership Interest and/or rights to the Panama City Market. Each
Minority Partner hereto shall be responsible for the preservation of his or her
own interest in this Partnership and/or the Panama City Market. If additional
Partners are admitted as a result of decree or settlement, such event shall not
give rise to a claim for damages and/or equitable relief in favor of any
Minority Party hereto. The Executive Committee shall by majority vote have
absolute and unfettered discretion and authority to settle claims to participate
in this Partnership on whatever terms it deems by majority vote to be in the
best interests of this Partnership even though such settlement may reduce the
interest of each Minority Party in this Partnership, provided such action is
taken in good faith.
10.16 Surrender of Rights. Each signatory to this Agreement surrenders all
rights which each signatory has by virtue of any and all prior settlement
agreements and/or merger agreements
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and/or other agreements or acts in and to any interests associated with the
operation of a cellular system in Panama City in favor of the terms of this
Agreement. Such surrender of rights shall apply whether or not all twenty eight
(28) minority interest holders to whom this Agreement is presented sign and
return this Agreement and pay the initial Capital Call in a timely fashion. In
the event less than all twenty eight minority interest holders sign this
Agreement the Winning Partner may elect to form another entity to serve as a
holding entity. In such event the rights of the signatories hereto in the System
shall be limited and governed by this agreement rather than by previously
executed settlement agreements (which would include the ▇▇▇▇▇▇ settlement
agreement, the MTC agreement and the Western Cellular Agreement) or the merger
agreement which was the Joint Agreement of November 21, 1986.
Effective date of the Partnership is April 29, 1988.
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